Trump International Gold Club Scotland Limited+the Trump Organization Llc V. The Scottish Ministers+aberdeen Offshore Wind Farm Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2014] CSOH 22 |
| Docket Number | P480/13 |
| Date | 11 February 2014 |
| Court | Court of Session |
| Published date | 10 February 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 22 | |
| P480/13 | OPINION OF LORD DOHERTY in the Petition (FIRST) TRUMP INTERNATIONAL GOLF CLUB SCOTLAND LIMITED and (SECOND) THE TRUMP ORGANIZATION LLC Petitioners; against THE SCOTTISH MINISTERS Respondents; and ABERDEEN OFFSHORE WIND FARM LIMITED Interested Party: for Judicial review of decisions of the Scottish Ministers, dated 26 March 2013, (a) not to hold a public inquiry into and (b) to grant, subject to conditions, consent under section 36 of the Electricity Act 1989 for the construction ________________ |
Petitioners: Steele QC, Burnet; Dundas & Wilson CS LLP
Respondents: Mure QC, Springham; Scottish Government Legal Directorate
Interested Party: Armstrong QC; Shepherd & Wedderburn LLP
11 February 2014
Introduction
[1] This petition for judicial review challenges the decisions of the Scottish Ministers dated 26 March 2013 (a) not to hold a public inquiry, and (b) to grant consent to Aberdeen Offshore Wind Farm Limited ("the interested party") under section 36 of the Electricity Act 1989 ("the Act"). The decisions were made by the Minister for Enterprise, Energy and Tourism and were intimated by letter dated 26 March 2013 ("the decision letter") (6/1). The consent is for the construction and operation of a deployment centre for testing offshore wind turbines, the European Offshore Wind Deployment Centre ("EOWDC"). The project consists of eleven wind turbines, with a maximum power generation of up to 100MW.
[2] The petitioners are the owners and developers of a golf course and resort development at the Menie Estate, Balmedie, Aberdeenshire ("the Trump development."). It was granted planning permission in December 2008 following the respondents' decision to call-in the application and hold a public local inquiry in relation to it. The site of EOWDC is in Aberdeen Bay, approximately 2km off the coast of Blackdog. The nearest proposed turbine would be approximately 3.5km from the Trump development.
[3] The petitioners objected to the interested party's application for s36 consent. Following consultation with a variety of bodies, and consideration of the application and objections, civil servants prepared a report for the Minister to consider. On 26 March 2013 the Minister decided that it was not appropriate to hold a public inquiry, and he granted consent.
[4] On 17 May 2013, the petitioners obtained a first order in the present proceedings. On 20 May 2013 the petition was served on the respondents and on the interested party. On 24 September 2013 the Lord Ordinary issued her Opinion in the Petition for Judicial Review by Sustainable Shetland 2013 SLT 1173. On 26 September 2013 the petitioners intimated a minute of amendment. The minute added a new ground of challenge - that the grant of s36 consent had been unlawful because the interested party held neither a licence granted under s6 of the 1989 Act nor an exemption (in terms of s5) from the prohibition on unlicensed supply etc contained in s4.
[5] The respondents and the interested party lodged answers to the petition. Parties were ordained to lodge notes of argument. A first hearing took place before me on 12, 13, 14 and 15 November 2013.
The issues
[6] I find it convenient to deal with the issues canvassed before me in the following order:
(i) Statutory construction - the Electricity Act 1989 (paragraphs 12-46).
(ii) Apparent bias (paragraphs 47-109).
(iii) The decision not to hold a public inquiry (paragraphs 110-129).
(iv) ECHR (paragraphs 130-134).
(v) The matters raised in Stat 27 of the petition (paragraphs 135-148).
(vi) The Court's discretion to refuse to grant reduction (paragraphs 149-152).
First I shall set out excerpts from some of the relevant legislation.
Relevant statutory provisions
[7] The Electricity Act 1989 ("the 1989 Act") provides:
"Part I ELECTRICITY SUPPLY
Protection of public interest
...
4.- Prohibition on unlicensed supply etc
(1) A person who-
(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;
(b) participates in the transmission of electricity for that purpose;
(bb) distributes electricity for that purpose;
(c) supplies electricity to any premises;
(d) participates in the operation of an electricity interconnector; or
(e) provides a smart meter communication service,
shall be guilty of an offence unless he is authorised to do so by a licence.
....
(4) In this Part, unless the context otherwise requires-
...
'generate', in relation to electricity, means generate at a relevant place;
...
(5) In this section-
'relevant place' means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; ...
5.- Exemptions from prohibition.
(1) The Secretary of State may by order grant exemption from paragraph (a), (b), (bb), (c), (d) or (e) of section 4(1)
(a) either to a person or to persons of a class;
(b) either generally or to such extent as may be specified in the order; and
(c) either unconditionally or subject to such conditions as may be so specified.
...
6.- Licences authorising supply, etc
(1) The Authority may grant any of the following licences-
(a) a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given ('a generation licence');
(b) a licence authorising a person to participate in the transmission of electricity for that purpose ('a transmission licence');
(c) a licence authorising a person to distribute electricity for that purpose ('a distribution licence');
(d) a licence authorising a person to supply electricity to premises ('a supply licence');
(e) a licence authorising a person to participate in the operation of an electricity interconnector ('an interconnector licence'); or
(f) subject to subsection (1C), a licence authorising a person to provide a smart meter communication service ('a smart meter communication licence').
(1A) Subject to subsection (1B), the Secretary of State may grant a smart meter communication licence.
...
(9) In this Part-
...
'electricity generator'" means any person who is authorised by a generation licence to generate electricity except where that person is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;
'electricity supplier' means any person who is authorised by a supply licence to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence.
....
36.- Consent required for construction etc. of generating stations
(1) Subject to subsections (1A) to (2) and (4) below, a generating station shall not be constructed at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be extended or operated except in accordance with a consent granted by the Secretary of State.
...
(1C) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).
(2) Subsection (1) above shall not apply to a generating station whose capacity-
(a) does not exceed the permitted capacity, that is to say, 50 megawatts; and
(b) in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended;
and an order under this subsection may make different provision for generating stations of different classes or descriptions.
(3) The Secretary of State may by order provide that subsection (2) above shall have effect as if for the permitted capacity mentioned in paragraph (a) there were substituted such other capacity as may be specified in the order.
(4) The Secretary of State may by order direct that subsection (1) above shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.
(5) Subject to subsections (5A) and (5B), a consent under this section-
(a) may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Secretary of State to be appropriate; and
(b) shall continue in force for such period as may be specified in or determined by or under the consent.
....
(6) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
...
(8) The provisions of Schedule 8 to this Act (which relate to consents under this section and section 37 below) shall have effect ...
36C - Variation of consents under section 36
(1) The person for the time being entitled to the benefit of a section 36 consent may make an application to the appropriate authority for the consent to be varied.
...
37.- Consent required for overhead lines
(1) Subject to subsections (1A) to (2) below, an electric line shall not be installed or kept installed above ground except in accordance with a consent granted by the Secretary of State.
...
(3) A consent under this section-
(a) may include such conditions (including conditions as to the ownership and operation of the line) as appear to the Secretary of State to be appropriate;
(b) may be varied or revoked by the Secretary of State at any time after the end of such period as may be specified in the consent; and
(c) subject to paragraph (b) above, shall continue in force for such period as may be specified in or determined by or under the consent.
(4) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
...
38. Preservation of amenity and fisheries
...
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